The Reasonableness of Extradition Assurances Against Torture in India v Badesha
In India v Badesha, 2017 SCC 44 [Badesha] the Supreme Court of Canada (“the Court”) weighed in on the extradition of two Canadian citizens charged in India for conspiracy to commit murder in an alleged honour-killing. The Court’s decision provides a useful overview of extradition law in Canada and the factors the Minister of Justice (“Minister”) can consider in determining whether to surrender someone requested by another state. The Court further clarifies the method of judicial review in an extradition context and in doing so, shows deference to the Minister’s expertise.
It is one of the basic tenets of extradition law that when a person is alleged to have committed a crime in another country, he or she should answer for the crime in that country’s justice system. Extradition is the process that allows one state to assist the other in effecting this principle, and is founded on the ideas of “reciprocity, comity and respect for differences in other jurisdictions” (para 35).
When Canada receives diplomatic requests from other states for extradition, the process begins with the accused arrested under the Extradition Act, SC 1999, c 18 [Act]. A judge will then hold an extradition hearing to determine whether there is a prima facie case against the accused, and then the Minister will make a decision whether to surrender the accused to the requesting state.
Both the accused and the requesting parties are able to appeal the Minister’s decision regarding surrender. The court of appeal in the province in which the surrender request originated “has exclusive original jurisdiction to hear and determine applications for judicial review” of the Minister’s surrender decision (section 57(1) of the Act).
Canada will only surrender persons to countries with whom there is an extradition agreement, and under s 3(1)(b) of the Act, will only extradite if the alleged crime is also a serious offence punishable in Canada. Although the Act requires equivalency in the crime, it does not require the punishments to be equal, creating complications when a country that imposes the death penalty requests extradition.
As the Court notes in Badesha, the Act serves not only to fulfill Canada’s international obligations, but also protects the public and ensures that perpetrators of crime cannot escape justice through national boundaries (para 36). At the same time, the Act also protects those sought for surrender by creating a process that protects their rights with a “careful balancing of the broader purposes of the Act with the individual’s rights and interests” (para 37).
When a person’s surrender would violate the principles of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms [Charter], the Minister must refuse extradition. For example, if there is substantial risk that a surrendered person would face torture or mistreatment in the requesting state, that extradition would violate the principles of fundamental justice.
Jaswinder Kaur Sidhu had secretly married her husband Sukhwinder Singh Sidhu in India, against the wishes of her family, who tried to stop the marriage. Her uncle, Surjit Singh Badesha, and mother, Malkit Kaur Sidhu, both Canadian citizens living in Canada, objected to Sukhwinder because he was a rickshaw driver and from a poor family, while they were in a high socio-economic class.
On June 8, 2000 a group of armed men attacked Jaswinder and Sukhwinder while they were travelling by scooter in the Punjab region. The men left Sukhwinder seriously injured, and drove away with Jaswinder, whose body was found the next day on the bank of a canal with her throat cut.
Thirteen people were charged in India for the murder, including Mr. Badesha and Ms. Sidhu who were charged with conspiracy to commit murder. India sought their extradition for this offence under the Indian Penal Code: Extradition Treaty between the Government of Canada and the Government of India, E101286 CTS 1987 No 14.
The Minister’s Decision
The Minister authorized extradition proceedings against Mr. Badesha and Ms. Sidhu on the corresponding Canadian offences. The extradition judge found that there was sufficient circumstantial evidence, including death threats to Jaswinder and Sukhwinder and phone calls to some of the perpetrators around the time of the attack, implicating Mr. Badesha and Ms. Sidhu in the alleged crime. The extradition judge also found that a reasonable jury, properly instructed, could find that the two hired the perpetrators to kill Jaswinder, and so committed them on charges of conspiracy to murder. The Minister then ordered Mr. Badesha and Ms. Sidhu’s surrenders to India, determining that, in accordance with section 44(1)(a) of the Act, doing so would not be “unjust or oppressive having regard to all the relevant circumstances.”
Mr. Badesha and Ms. Sidhu argued that their surrender would be unjust under section 44(1)(a) and would violate the principles of fundamental justice contrary to section 7 of the Charter. Both argued that extradition would be unjust or oppressive because there was no guarantee that India would not impose the death penalty. They also argued that a potential custodial sentence would violate their section 7 rights, due to Mr. Badesha and Ms. Sidhu’s advanced ages and health problems, as well as reported overcrowding, violence, and torture in Indian prisons. Finally, Mr. Badesha and Ms. Sidhu argued that there were weaknesses in the evidence against them.
The Minister, however, made their surrender contingent on India’s assurance against imposing the death penalty, and stated that in the absence of bad faith on the part of India, he was entitled to presume India would honour its assurances.
With respect to prison conditions in India, the Ministry of External Affairs in India informed Canada that prisons in the Punjab region are regularly visited by medical officers and have modern medical equipment. In addition, the Minister made the accused’s surrender conditional upon assurances that India would provide any required medical care and “make every reasonable effort to ensure his safety while in custody” (para 18). The Minister also stipulated that Mr. Badesha and Ms. Sidhu must have immediate and unrestricted consular access, but India was only willing to provide consular access in accordance with India’s obligations under the Vienna Convention on Consular Relations, CTS 1974 No 25, which is not “immediate and unrestricted” (para 18).
The Minister expressed concern over reports of violence and torture in India’s prisons, especially in respect to the safety of female inmates. Yet, despite these concerns, the Minister found India’s commitment to address the problem of violence and torture, and promise of consular access for Ms. Sidhu sufficient.
Although there are concerns about corruption and intimidation in India, the Minister found that there was no evidence to suggest that such concerns would prevent Mr. Badesha and Ms. Sidhu from receiving a fair trial in India. Specifically, there was no evidence of corruption or intimation with the others charged and tried in the murder. Moreover, the Minister found that there was sufficient evidence to support India’s allegations and that most of the evidence needed to prosecute the two was available in India. However, as a precaution the Minister made their surrender conditional on the assurance that Canadian officials could attend court proceedings in India.
Ultimately, the Minister was confident that India would honour all of its assurances because it was in its best interest to respect the extradition treaty between the two countries and maintain with Canada a “positive political relationship” (para 19). Therefore, the Minister concluded based on all the circumstances, including the serious nature of their alleged crime and India’s interest in pursuing justice on Indian soil, that Mr. Badesha and Ms. Sidhu’s surrender was a justifiable infringement on their section 6(1) Charter right to remain in Canada, and ordered their extradition.
Mr. Badesha and Ms. Sidhu applied for judicial review of the Minister’s decision to the British Columbia Court of Appeal (“BCCA”). The majority of the BCCA, reviewing the decision on the standard of reasonableness, found the Minister’s conclusion that the surrender would not be unjust or oppressive in the circumstances to be unreasonable.
The majority held that assurances from a state requesting extradition must “address meaningfully the risks that they are intended to mitigate” in order for the Minister’s surrender order to be reasonable (para 31, quoting India v Badesha, 2016 BCCA 88 [Badesha BCCA]). Specifically, the majority found that the Minister failed to take into account whether India’s promises regarding Mr. Badesha and Ms. Sidhu’s health and safety meaningfully addressed concerns about custodial violence and torture—especially since India’s assurances amounted to the same protection already afforded to Indian prisoners under the law, with documented human rights abuses occurring under those same laws. They also found that consular monitoring, the only “realistic protection” offered to Mr. Badesha and Ms. Sidhu, would be an inadequate safeguard against mistreatment (para 58).
The Court’s Decision
The Attorney General of Canada on Behalf of India appealed the BCCA’s judgment, and the Court allowed the appeal, finding the Minister’s decision to surrender Mr. Badesha and Ms. Sidhu reasonable.
Unlike the BCCA, the Court provided more deference to the Minister’s decision:
“Given the Minister’s superior expertise in Canada’s international relations and foreign affairs, he or she is in the best position to determine whether the factors weigh in favour of or against extradition.” (para 39)
They agreed that the standard of review is reasonableness, which in the extradition context requires a court, “not to re-assess the relevant factors and substitute its own view” but rather to ask “whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts” (para 39, quoting Lake v Canada, 2008 SCC 23).
The Court noted that where there is risk of mistreatment or torture, the Minister may determine that assurances are needed to ensure the safety of the surrendered. The task of the reviewing court is to “consider whether the Minister has reasonably concluded that, based on the assurances provided, there is no substantial risk of torture or mistreatment” (para 46). Moreover, Justice Moldaver, writing for the full Court, emphasized that
“[D]iplomatic assurances need not eliminate any possibility of torture or mistreatment; they must simply form a reasonable basis for the Minister’s finding that there is no substantial risk of torture or mistreatment” (para 46).
The reliability, and thereby the Minister’s reasonable acceptance, of diplomatic assurances depends on the circumstances, requiring the reviewing court to take a contextual approach in its inquiry. For example, assurances against the death penalty are generally easier to monitor and therefore reliable, than are promises regarding torture. In making a determination, the Minister can consider multiple factors, based on “the circumstances prevailing at the time,” such as the human rights record of the requesting state, the government’s past compliance with assurances, and its capacity to fulfill its promises (paras 48-49).
Ultimately, the Court found that the BCCA majority failed to consider many relevant factors that the Minister balanced in his assessment of the reliability of India’s assurances, and that “[t]hese factors formed a reasonable basis for the Minister’s conclusion that the surrenders of Mr. Badesha and Ms. Sidhu would not violate the principles of fundamental justice” (para 59). Again, the Court insisted that “[t]he inquiry for the reviewing court is not whether there is no possibility of torture or mistreatment, but whether it was reasonable for the Minister to conclude that there was no substantial risk of torture or mistreatment,” and that in finding the Minister’s decision unreasonable, the BCCA majority effectively substituted their “own view for that of the Minister” (para 63).
Undoubtedly it is in India’s interest to prosecute such a horrific crime on their own soil. It is also fitting that Canada would wish to maintain its diplomatic relations with India, as well as assist in holding Mr. Badesha and Ms. Sidhu answerable to the law. However, the BCCA found that “when seen from the perspective that the applicants could not in conscience be surrendered, a prosecution in Canada may take on a more practical appearance,” and that there was enough evidence in Canada, since the phone calls triggering the murder originated here, to do so (Badesha BCCA, para 73). Yet the Court does not address this finding, and instead places far more weight on the nature of the alleged crime and diplomatic relations with India, than on considerations of safety and Charter rights.
Moreover, the Court’s insistence that the focus of judicial review in the context of extradition is just on the reasonableness of the Minister’s conclusions on torture, rather than on the actual presence of such a risk, will likely lead reviewing courts to show more deference to the Minister’s extradition decisions. Surely most states, including those with documented human rights abuses, are willing to provide assurances against mistreatment and torture to achieve their requested surrenders. Yet decisions made predominantly on such assurances may now be found reasonable since it is no longer available to the reviewing court to assess the actual risk. Therefore, this focus of review on the reasonableness of the conclusion rather than the reality could lead to more people extradited from Canada into conditions contrary to the values and protections enshrined in the Charter.